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Flashcards in Crim Proc Deck (91)
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1

4th amendment

The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized

2

FIRST ISSUE:
S&S governed by 4th? Qs

Executed by gov agent?
Area/item protected by 4th?
Physical intrusion or violation of reasonable expectation of privacy?
Individual has standing?

3

Gov agent includes

Private citizen at direction of police
Security guard deputized with power of arrest (campus cops)
Public school administrator

4

Area/item protected by 4th?

Persons
Houses (incl. "curtilage" - surrounding area of domestic use)
Papers
Effects

5

Unprotected items:

"Knowing exposure to 3rd parties":
Paint scrapings from car
Bank account records
view from public airspace
Garbage
Voice
Odors
Handwriting
View across open fields

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Reasonable expectation of privacy - test:

Actual subjective expectation
AND
Recognized by society as reasonable expectation

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Who has standing?

Individual's personal privacy rights invaded.
Overnight guest --> areas he is expected to access.
Use of 3rd party residence for biz - "personal"
Owns item - if reasonable expectation of privacy in AREA IN WHICH IT WAS SEIZED
Passenger in 3rd party's car - NO,
NY - YES re weapons if possession attributed to him

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SECOND ISSUE
When does warrant satisfy 4th?

Neutral and detached magistrate.
Probably cause and particularity [OR - MBE ONLY - police relied in good faith]
Properly executed

9

Probable cause that?

Fair probability that contraband or evidence of crime will be found in area searched.
Hearsay - OK
Anon tip - see mess below
Particularity - doesn't need to mention name if indicative.

10

Anon tip = probably cause - MBE

CIRCUMSTANTIAL EVIDENCE ENOUGH
with police corroboration
sufficient for magistrate to make "common sense practical" determination
that PC exists
based on totality of circumstances

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Anon tip = probably cause - NY

ALSO NEED INFO ABOUT INFORMANT
must establish
"veracity and reliability" of informant
OR
informant's "basis of knowledge" AND police observation confirms sufficient detail suggestive of criminal activity in question

12

Good faith by police enoughto substitute PC [MBE only] - when not applicable?

Not applicable when:
Affidavit or warrant terribly lacking, magistrate biased, reckless falsehoods

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When is a warrant properly executed?

Compliance with terms and limits
Compliance with "Knock and announce" rule

14

When is "knock and announce" not needed?

Officer reasonably believes it would be futile / dangerous / inhibit investigation

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THIRD ISSUE
Valid warrantless search - 8 types
[ESCAPIST]

Exigent circs
Search incident to arrest
Consent
Automobile
Plain view
Inventory
Special needs
Terry stop and frisk

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1. Exigent circumstances

Evanescent evidence - disappears before warrant can be obtained
Hot pursuit - plain view evidence in home
Emergency aid - when entering premises due to emergency

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2. Search incident to arrest

Arrest lawful.
Search justified by officer safety and need to preserve evidence.
Must be contemporaneous with arrest.

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Search incident to arrest - wingspan?

includes containers within immediate control, regardless of nature of offense.
NY: Can access containers only if he is suspected to be armed.

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Search incident to arrest - car?

Interior cabin including closed containers - YES.
Trunk - NO.
After arrestee is SECURED - search car only with reason to believe it contains evidence RELEVANT to arrest.
NY - once arrestee is OUT OF CAR, can't search containers in car for anything!

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3. Consent

Must be voluntary and intelligent
"Reasonable officer believes permission is granted"
Apparent authority - OK if officer reasonably believed he had actual authority

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Consent in shared premises?

Any resident can consent to common areas
But objecting tenant prevails in "shared dominion/control" areas

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4. Automobile

Lesser expectation of privacy
PC that contraband/evidence is there
Containers big enough to contain contraband/evidence
TIMING for PC - can arise after being pulled over but before initiating search

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5. Plain view

Lawful access to place where viewed
Lawful access to item (don't need to open bag)
Criminality of item immediately apparent

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6. Inventory search

When:
Arrestee - when booked into jail
Vehicle - when impounded
Requires:
Regulations which are reasonable in scope
Search complies with regs
Search conducted in good faith (motivated solely to safeguard possessions or ensure officer safety)

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7. Special needs

Needs of cops, gov employees, school officials
BEYOND general interest in law enforcement
Eg. Random drug testing For employees in sensitive possessions + public schoolchildren in extracuric activities
As parole condition
School search (reasonable, not excessively intrusive re age, sex, infraction)
Border searches (including citizens)
NOT when primary purpose is gathering criminal evidence!

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8. "Terry" stop and frisk

Stop: Brief detention/seizure to investigate conduct
Frisk: Pat down for weapons
[No PC needed for either!]

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Stop - grounds

Reasonable and articulable facts (less than PC) (objective)
that inform officer's belief
that criminal activity is present

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Frisk - grounds

Specific and articulable facts (less than PC) (objective)
that suggest suspect is armed and dangerous

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When is stop considered "stop" for 4th?

Reasonable person does not feel free to leave.

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Is pursuit = seizure?

MBE: Only if he submits or is physically restrained.
NY: Yes. (Meaning that once there is pursuit, there is no exception for not having warrant)